Grant v. Curtin

Markell, J., delivered the opinion of the Court. This is an appeal from rulings, on motion for “judgment” n. o. v., setting aside the verdicts and answers, and directing opposite verdicts and answers, on issues of mental incapacity, knowledge of contents of a will and undue influence sent from the Orphans’ Court after a caveat to the will of Mrs. Mary Grant Griffin. The testatrix died August 1, 1948, leaving a will dated November 5, 1943. Caveatrix filed notice of objections to probate and of caveat on August 6, 1948, and later filed a caveat.

On November 4, 1948 issues were ordered sent to the circuit court to be tried by a jury. On January 12, 1949 a motion of caveatees for directed verdicts was granted on two issues, and rulings were reserved on the other three, on which the jury found for caveatrix. A motion for “judgment” n. o. v. or, in the alternative, for a new trial, was filed January 14, 1949. The court on April 28, 1949 granted the motion n. o. v., set aside the three verdicts and answers and directed opposite verdicts and answers, and overruled the motion for a new trial.

On June 3, 1949 caveatrix appealed. Caveatees have moved to dismiss the appeal because it was not taken within thirty days. Rule 2 of the Rules and Regulations Respecting Appeals, as revised, effective January 30, 1945 and ever since, provides, “All appeals * * * allowed from any judgment or determination of a Court of Law, to the Court of Appeals * * * shall be taken within thirty days from the date of such judgment or determination, and not afterwards; and the transcript of the record shall be transmitted to the Court of Appeals within sixty days from the time of the appeal taken * *.” [Italics supplied.] In the revision of Jan ³⁶⁸ uary 30, 1945 the only change made in Rule 2 was the change in the periods specified from “two months” and “three months” to “thirty days” and “sixty days” respectively. Before January 30, 1945 Rule 2, as such, had been in force at least since 1909, (see also 134 Md. 3 , 1920) and, as Art. 5, sec. 6 of the Code, without change in wording since 1888 until 1924.

The words of Rule 2, standing alone, unquestionably were and are broad enough to include appeals from “determinations” at a trial of issues sent from the Orphans’ Court. Kamps v. Alexander, 133 Md. 198 , 104 A. 427 ; Bradley v. Bradley, 123 Md. 506 , 91 A. 685 . But since 1922 the words of Rule 2 have not stood alone. Because on a verdict on such an issue there is not technically any “judgment” entered in the court of law, this court in the cases cited held that the period of- “two months” ran from the date of verdict, even though a motion for new trial was pending more than two months.

To prevent loss of the right of appeal in such cases, Chapter 356 of the Acts of 1922 provided that “All appeals from any decision or determinations or rulings of a court of law in cases of issues sent from the Orphans’ Court to a court of law to be tried, to the Court of Appeals * * *, shall be taken within two months from the date the verdict is rendered, unless a motion for a new trial is duly filed, in which case the appeal shall be taken within two months from the date upon which such motion for a new trial is denied, overruled or dismissed; * *”. Bastable v. Bastable, 144 Md. 213, 214 , 124 A. 866 . Without mentioning Rule 2, as such, the Act of 1922 amended section 6 so as to except appeals “from decisions and determinations or rulings in cases of issues sent from the Orphans’ Court to a court of law to be tried”, and added, as section 6A, the above quoted provision for such cases. In the Code of 1924 sections 6 and 6A, as enacted in 1922, were codified as sections 6 and 7.

Rule 2, as such, was never changed by this court but was readopted without change in 1933. In the Code of 1939 section 6 was codified in the form of Rule 2, ³⁶⁹ without the exception made by the Act of 1922, but section 7 was recodified without change. It may be that there is no reason why the periods of two months and three months should be retained in cases of trial of issues from the Orphans’ Court, but there is also no reason for obliterating the provision in the act for computing the periods from disposition of a motion for new trial. This court has changed Rule 2 in one respect only, and has not superseded, in whole or in part, the Act of 1922.

The act remains in force. The motion to dismiss is overruled. Caveatrix contends that, under the General Rules of Practice and Procedure, Part Two, subd. VI, “Revisory Power of Courts over Judgments, Orders and Decrees”, Rule 1, the trial court on April 28, 1949 had no power to grant the motion for judgment n. o. v., after expiration of the term of court (and the “period of thirty (30) days” under the rule) after the motion was filed.

The rule mentioned has no application to a motion for judgment n. o. v., which is authorized by Part Three, subd. Ill “Trials”, Rule 8, which in turn is applicable to verdicts on issues from the Orphans’ Court. In Rule 8 the word “judgment” is not used in a technical sense, but includes “decisions” or “determinations” on such issues. Schmeizl v. Schmeizl, 184 Md. 584, 597-599 , 42 A. 2d 106 .

Moreover, neither of the rules mentioned imposes a time limit on action by the court on motions timely filed. On the merits the question is whether there is evidence legally sufficient to show mental incapacity or undue influence. On this question, of course, any conflict in evidence for the opposite parties must be resolved in favor of caveatrix. Caveatrix, Kate, is the sister, the only surviving relative, of the testatrix, Mary.

Both were born in Ireland, Kate in 1870, Mary (Kate says) fifteen years or more earlier. Kate came to this country when she was eighteen or twenty, Mary earlier. Each spent most of her life in this country as a domestic servant. In 1901 Mary entered the employ of Mrs. May H. Curtin ³⁷⁰ in Philadelphia, as a nurse, when Mrs. Curtin was eighteen and her daughter (now Mrs. Mae Cochran) was a young baby.

Mrs. Curtin’s husband was a naval officer. In 1906, while they were living at the Naval Academy, their son Roland (now a Captain in the Navy) was born. Mrs. Curtin and Roland are the caveatees. Mary nursed Roland from his birth.

In 1914 Mrs. Curtin’s husband died. She and her children, and Mary with them, continued to live in Annapolis. Mrs. Curtin obtained employment, rented a house, 204 King George Street, and left Mary to run the house and take care of the children. In 1919 the daughter married a Naval Academy graduate.

In 1920 the daughter (Mrs. Cochran) went to Connecticut, and her mother, with Mary, went there and stayed with her till her oldest child was born. Mary was with Mrs. Curtin continuously from 1901 till she went to Mrs. Cochran in 1920. She was with Mrs. Cochran, and took care of all Mrs. Cochran’s three children, till 1927, when she married John Griffin, who owned the house that Mrs. Curtin had rented for some years after Mrs. Curtin’s husband’s death. Mary was married from Mrs. Cochran’s house in Philadelphia.

At the wedding, at the Roman Catholic Church in Ardmore, Pennsylvania, at Mary’s request, Mrs. Curtin gave her away. Kate, who was then employed in Philadelphia, was at the wedding. Kate says, “I was bridesmaid. I gave her away.

I was on the altar when she was married.” — an obviously impossible combination of roles. Mrs. Cochran “imagines” Mary was ten years younger than Kate says she was. During Mary’s married life, Kate “came down from [Philadelphia] on weekends, maybe twice a year”, and at Christmas, to visit. She says, “When I came to Mr. Griffin’s funeral, my sister asked me after the burial was over if I would come and stay with her.

She was very lonely and not feeling well and she asked me to come and live with her and I agreed to come and stay with my sister Mary”. She did not come of her own accord; Mary asked her. “She always wanted me.” She ³⁷¹ says [January, 1949] she has lived at 204 King George Street “six years, I think. I came here right after Mr. Griffin died. I think in January he died.” She had previously lived in Philadelphia, doing laundry and different things.

At that time, Kate says, Mary “was not able to get around very well. She went out a couple of times, but only a few times she went out. Once or twice to church. I was with her and she went to get some coal, and that was all.

We went in a taxi and afterwards I did all the marketing for her and paid the bills.” She did the marketing because “my sister was not able to go out on the street. * * * She did not have very good eyesight. Only one eye and very limited in the other. * * * If she bought what she wanted, she would leave it behind and forget it, as she did many times. Just forget it. * * * Her memory was very bad. * * * She did not go out very often. Anything in the house, she could not remember where she put it.

She would put things away, and she could not remember where she put anything. * * * She did a little work around, not very much. A little bit of something she could do in the house. * * * She was not [able at all to take care of business on the outside]. I did everything for her.” There was not at any time any ill-feeling between Kate and Mary. “Never a word. I loved my sister.” Kate was at the Emergency Hospital “over two years ago and in the hospital for two weeks.” “Just my sister” visited her there. “She took a taxicab.

I told her to come that way. She got a taxi to take her there and to go home, and he would always see that she got in the house straight”. “We had a little treat myself and Mary, at times, but I never was drunk.” Kate never got “really drunk. Very often I drink”. Kate met Mrs. Curtin in Philadelphia when Mrs. Cochran was a little baby.

Mrs. Curtin very often visited at 204 King George Street. Mary was a servant for the Curtins for a good many years. “She [Mrs. Curtin] ordered her [Mary] around and she did things for her when she was living there, or anything she wanted she did for her.” Mary “treated her [Mrs. ³⁷² Curtin] nice. I think they had fusses about different things at different times.” Kate knows Roland Curtin; she “saw him in her [Mary’s] house a couple of times. They were looking for an apartment to live in with his wife.

Mary gave him his lunch”. She never saw him acting unfriendly or trying to boss Mary. He was “just sitting and talking with her.” He did not seem “over” friendly. “Not over zealous”. “My sister told her [Mrs. Curtin] to get out of the house many times. She [Mrs. Curtin (?) ] fussed with her and with me.” Kate had something to do with Mrs. Curtin going to Carvel Hall “on two days’ notice”, [evidently while Mrs. Curtin was renting a room or rooms in Mary’s house].

Kate heard Mary tell Mrs. Curtin she had to leave the house; “Mrs. Curtin and myself were quarrelling all the time. She would not let anybody in the room to clean it.” Kate recalls that Mrs. Curtin came and took Mary out with her “only that one time she took her out in the morning. * * * I don’t know the date. * * * A few years or so [after Kate came down here]. She told me she was going out with Mrs. Curtin in the morning. * * * She was out a couple or three hours. I went to the door many times to see whether she was coming and I did not [sic.] And at last I saw her in the kitchen and I asked her where she was and she said she was on an errand with Mrs. Curtin and I said what was it.

And she said, ‘she asked me not to tell you,’ and so she did not tell me. * * * She was very tired, and I made her a cup of coffee. And she lay down on the lounge and she slept all afternoon, when I had to wake her up for supper. [She did not eat very much supper], she was very, very tired.” Kate first knew of Mary’s will after Mary’s death. She infers or assumes that the will was executed on the day described by her. John Griffin’s will is not before us.

From the testimony it appears that the house was left to Mary and constituted all or substantially all her estate. John and Mary had a joint bank account which on January 27, 1940 amounted to $4025.24, on October 1, 1941 (before ³⁷³ his death) to $3497.77, on January 1, 1942 (after his death, about the time Kate began living with Mary) to $3104.67, on November 5, 1943 (when Mary’s will was executed) to $1709.85, and at Mary’s death to $284.83. On August 16, 1943 Kate opened, with a deposit of $3900.00, an Annapolis bank account, in her name in trust for her and Mary, “joint owners, subject to the order of either; the balance at the death of either to belong to the survivor”. On November 5, 1943, the account amounted to $3500.00; on January 10, 1946, she deposited $3800.00; at Mary’s death the account amounted to $820.04; the next day Kate withdrew $430.75.

Kate brought that money [$3900.00 and presumably the subsequent $3800] from Philadelphia. She says, “My sister wanted me to bring down my money. I was going to live with her and bring it here. I was not going back to Philadelphia, long as she lived, and I wanted to be with her.” She says the money she withdrew from her account during Mary’s life “was spent on the home”, on their joint expenses, except two or three hundred dollars for herself — and about $300 for her own hospital expenses, and she paid Mary’s funeral bill [presumably .out of the $430.75].

Why she should have paid the funeral expenses or, why if she did pay them, she should not collect them from the estate, does not appear. Mrs. Curtin, her daughter and her son all testified at length and in detail to the long friendship and affection between Mary and the Curtin family. Evidently no similar relations existed between Kate and the Cur-tins. There is no evidence, except Kate’s testimony, that there was ever any friction between Mary and any of the Curtins.

Kate does not say there was any friction before or near the date of the will. Mrs. Norman, a high school teacher, a neighbor of Mary, who had known her since 1928, one of the witnesses for caveatrix, says she has heard Mary “mention them [the Curtins]. She was very fond of all of them, and Roland was closer to her than any of the rest. The only one of the family ³⁷⁴ I ever saw in the house was Mrs. Curtin.

She used to have a room there for a while. I don’t know how long.” Mrs. Curtin says that from November, 1944 to July, 1945 she rented two rooms from Mary, and from January, 1947 to August, 1947 one room. Roland says he was in Annapolis from February, 1942, on duty at the Naval Academy in 1943, till he left to take a sea command about the middle of November, 1943. During his time at the Academy, when he stopped in to see her, they would talk about all kinds of things and many times she would say, “I am not going to be here much longer.

I am going to leave you my house”. She took him out in the garden to tell him she had made the will. She did not want Kate to know about it, “because Kate would raise so much good hell”. “If she don’t know about it, I won’t have to answer to her about it.” She said, “If Kate knew I done it, she would kill me, or tear it up. I do not want her- to know about it, and we won’t talk about it, and we don’t want you to say anything about it.” Mrs. Curtin says John died in October, 1941; at Christmas Mary had two couples living in the house; Mary dictated to Mrs. Curtin a letter to Kate telling her to come in the afternoon of the 23d or the next morning, but that she would have to leave on the 26th because the people who lived there and occupied the rooms were coming back; after New Year’s Mary told Mrs. Curtin Kate had “given up her place and come here with her robe and clothes to take care of me”; previously Mary and Mrs. Curtin had had an understanding that when the two couples left Mrs. Curtin would come back and live in the house with her and rent the house, let her have one room to rent to girls, but take over the expenses of the house and live with her; Mary said, “Now my sister has come.

What can I do?”; Kate remained. After September, 1942 Mary put in an envelope a deed to John from his father, his father’s will and his stepmother’s will, came to Mrs. Curtin and asked her to keep them; in November, 1943 Mary came to Mrs. Curtin’s ³⁷⁵ house and got the papers; she said she was going to make a will; Mrs. Curtin asked whether she had a lawyer, she said, “I want the daughter [Mrs. Duckett] of the man who drew these papers [the late Judge Nicholas H. Green]; Mrs. Curtin asked whether she had told Mrs. Duckett she was coming, she said “No”, Mrs. Curtin said “I better phone”. Mrs. Curtin called Mrs. Duckett and said, “I have “a friend to make a will. Would you meet me at the front door of your office building”.

Mrs. Curtin was in a hurry, and Mrs. Duckett did meet her there. Mrs. Curtin said, “Here are the old wills. The only living relative 1 know of is her sister, who is now living with her”; Mary started to interrupt, Mrs. Curtin said, “Hush, I have not time,” Mrs. Duckett said, “That’s all right. She can tell me.” Mrs. Curtin told of John’s sister who was in a sisterhood of the church; Mrs. Curtin said, “1 think she knows what it is all about”, “You be sure she knows what she is doing and knows what it is all about”, and left Mary at the front door on the first floor.

Mary [later] walked out. Mrs. Curtin [had] asked her if she wanted a taxi and she said, “I don’t want that. I am going to walk to the coal yard and pay a bill and order some coal”. Mrs. Curtin says, “She wanted to and I suppose she did.” A week or two later Mary came to Mrs. Curtin’s house and said she wanted Mrs. Curtin to get the will, that she had left it at the lawyer’s office, and wanted Mrs. Curtin to lock it up in the bank; Mrs. Curtin went up, Mary got the will, the will was sealed, they took it over, and Mrs. Curtin told the cashier that Mary wanted the papers locked up; he took them and handed Mrs. Curtin a receipt after checking what was in the envelope; he was going to give Mary the receipt, and she said, “No, give it to Mrs. Curtin”; Mary said she would like Mrs. Curtin to keep the receipt, she said, “Your have a safe deposit box.

Put it in there”, so Mrs. Curtin did; from the time the will was put in the bank until she died, “she never saw it and I never saw it.” ³⁷⁶ Mrs. Ducket remembers that she went down and met Mary at the step at the front door; she believes Mrs. Curtin was the one who left here there. She says, “I took her back up the steps into my private office, and closed the door and she talked to me for about an hour. She told me what she wanted done very concisely, without pausing. Usually an elderly woman tells you this and that and the other thing.

I was impressed with her definiteness and her conciseness. I did not stop there. I questioned her about her other relatives. She told me she had a sister Kate.

She told me she had a sister-in-law, a sister of John. She told me her estate was the house. There was little money in the bank, but not too much — practically not a great deal left. I asked her if she cared to mention the sister of John in the will and she said she was a nun, and she understood she was not interested and could not receive it even if she left it to her.

Then we talked about the papers. She seemed reluctant to talk about Kate, and she came back to the Curtins. She said ‘They are like my own family. Captain Curtin is like my own baby.

I want the property to go to him, and I would like to provide something for his mother for life.’ I explained to her the legal phraseology to leave it for her life with remainder to Captain Curtin. She seemed to understand that and that is what she seemed to want. We went back to Kate, and I said, ‘Tell me more about Kate. Is she living with you, or where does she live?’ She told me she was living with her, ‘living with her uninvited’, and she said she drinks and she said she is to leave as soon as she has made arrangement to do so.

We went back to the question of the will, the Curtins again, and I told her I would like to provide in the case of the death of the people mentioned in the will, and she said, ‘Yes, yes’. That was what she thought important, particularly with Captain Curtin in the Navy and with the war going on. She then told me to provide his mother the power to will it. I went back to Kate again and she looked at me and said, ‘Do I have to leave something to Kate?

I owe her nothing’. ³⁷⁷ I said, ‘You don’t have to leave your property to your own children, much less your own sister.’ There was nothing for me to tell her except, ‘No, you don’t have to leave your property in any particular way’. It came to me at that time how a lawyer can really make a will for his client; that if I did any more talking about Kate, if I even tried to tell her it would look better after she was dead if she did leave something to Kate in her will, it would be my will. It would not be Mary G. Griffin’s will. She again told me she wanted Mrs. Curtin and Captain Curtin — she wanted the property to go to them.

I felt I had gone as far as I could